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Adler v. Air & Liquid Sys. Corp. (2012)

Our plain-English summary of Adler v. Air & Liquid Sys. Corp. (New York Supreme Court, August 8, 2012).

Twenty-two plaintiffs, all represented by the same lawyers, sued more than eighty defendants in New York County for asbestos-related injuries or deaths. Seven had lung cancer, fourteen had pleural mesothelioma, and Glenda Vega had peritoneal mesothelioma. Their alleged exposures came from construction trades, plumbing, electrical work, auto repair, railroad work, and service in the Navy, Coast Guard or Merchant Marine, mostly involving insulation, pipe covering, floor tile, joint compound, gaskets and valves. Vega alleged exposure as a child bystander and through her father's work clothes. The plaintiffs asked for one joint trial. The defendants objected, citing the number of parties, different diseases, work sites, time periods and living or deceased status. Applying the Malcolm factors, the judge ordered three trials: lung cancer, mesothelioma without Navy service, and mesothelioma with Navy service. He severed Vega, because her disease and exposure were unlike the others, and Neuer, because his claim arose under the Federal Employers' Liability Act (FELA). The judge also set the trial order and pretrial deadlines.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

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The decision

  • Court: New York Supreme Court
  • Decided: August 8, 2012
  • Citation: 2012 NY Slip Op 32097(U)
  • Docket: Docket No. 190181/11, Motion Seq. No. 002
  • Stage: Other
  • Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
  • State: New York

Outcome. The trial court granted the plaintiffs' motion for a joint trial only in part, ordering the 22 in extremis cases tried in three disease-based groups (lung cancer, non-Navy mesothelioma, Navy mesothelioma) and severing Vega and Neuer for separate trials, over the defendants' objections to any joinder.

What the court held. Under CPLR 602(a) and the Malcolm factors, considered together with none dispositive, asbestos cases may be joined when common issues predominate and no substantial prejudice is shown. Joinder is limited by the number of parties and by differences in disease or legal claim, such as peritoneal versus pleural mesothelioma or a FELA claim.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

Who Work Where When Products
Harry Adler member of the United States Navy (the Navy) U.S.S. FDR 1958-1970 gaskets and packing, insulating cement, cement, packing materials, gaskets
Harry Adler residential and commercial construction worker (construction) 1950s-early 1970s floor tile, joint compound, asbestos tiles, asphalt tiles, joint mix
Scott Dewitt fireman in the U.S. Navy (the Navy); military service 1977-1979
Scott Dewitt electrician's assistant (aerospace and aviation) Lawrence Aviation 1980-1982
Eugene Lehnert Local 3 Electrician (construction) numerous metropolitan New York work sites, New York 1964-2006 asbestos-reinforced plastics, floor tile, joint compound, pipe and block insulation, Bakelite, floor tile, joint compound, boiler insulation
Eugene Lehnert Local 3 Electrician (construction); worked near others using it One New York Plaza, New York, New York sprayed asbestos, spray fireproofing
Joseph Mirabile plumber (construction) various New York metropolitan worksites, New York nearly thirty years pipe and block insulation, gaskets and packing, sprayed asbestos, floor tile, joint compound, pipe covering, insulation, valves, pumps, gaskets, spray fireproofing, floor tile, wallboard compound
Joseph Mirabile fireman in the U.S. Navy (the Navy); military service 1976-1977 ship turbines, pumps, valves
Alan Nudelman co-owner of a gas/service station supervising mechanics; worked near others using it gas/service station 1959-1966 and 1974-1984 brakes, clutches and friction materials, friction products
Mark Rock fireman in the U.S. Coast Guard (the Navy); military service 1951-1954
Mark Rock plumber and construction manager (construction) various commercial and residential sites, New York 1956-early 1980s gaskets and packing, joint compound, pipe and block insulation, floor tile, gaskets, packing, joint compound, pipe covering, floor tiles, press pads
Robert Wexler plumber (construction) New York, New York 1958-1979 gaskets and packing, boilers, furnaces, pumps, valves, steam traps, baker ovens, gaskets
Glenda Vega infant bystander to hole patching work; worked near others using it her Bronx apartment, Bronx, New York 1975-1977
Glenda Vega father's wall-patching work; dust brought home New York, New York 1975-1977
Thomas Neuer signalman and foreperson (railroads) Park Avenue Tunnel, Grand Central Station, New York, New York 1972-1980 pipe and block insulation, asbestos-reinforced plastics, pipe insulation, wires, Bakelite
Murray Blonder carpenter (construction) various residential and commercial work sites, New York 1954-1979 joint compound, floor tile, joint compound, sheetrock, vinyl asbestos floor tile, wood fire doors
Charles Chidester electrician in the Navy (the Navy); military service U.S.S. Connelly 1944-1969 pumps, valves, electrical panels, turbines, evaporators
Charles Chidester worker at a military training center military training center, Florida 1971-1974 joint compound, pipe and block insulation, joint compound, asbestos insulation on condensers
John Dellaratta printer Imperial Paper Box, Brooklyn, New York 1950-1969 pipe and block insulation, insulating cement, asbestos insulation and cement on printing machinery, pipe coverings, boilers, roofing materials
John Dellaratta painter for Nassau County New York 1969-late 1970s joint compound, floor tile, taping, joint compound, vinyl tile
Joseph Milazzo worker in the supply area of Navy ships (the Navy); worked near others using it two U.S. Navy ships 1967-1971 gaskets and packing, insulating cement, asbestos textiles, cement, blankets, gaskets, rope packing
William Moritz electrician's assistant (the Navy); worked near others using it two Navy ships 1958-1960 gaskets and packing, insulating cement, asbestos cement, packing, gaskets
William Moritz truck driver; worked near others using it truck garage 1970-1977 brakes, clutches and friction materials, pipe and block insulation, insulating cement, pipe covering, cement, brake dust
Ivo Peraica insulator New York City metropolitan area work sites, New York, New York from 1978 boilers, pumps, chillers, turbines
Antonio Perez laborer (construction) World Trade Center, New York, New York 1970-1973 sprayed asbestos, asbestos spray application
Roberto Roman fireman in the U.S. Navy (the Navy); military service 1964-1968 pipe and block insulation, gaskets and packing, boilers, pumps, valves, insulation, gaskets, packing
Roberto Roman stationary fireman/boiler-tender health and educational institutions, New York, New York 1972-mid-1980s boilers, pumps, valves, refrigeration units, HVAC units
Frank Rugnetta auto mechanic and service station owner service station 1964-1966 and 1972-1979 brakes, clutches and friction materials, automobile brake and clutch repair
Frank Rugnetta mechanic Port Authority and New York Transit Authority, New York, New York 1966-1971 asbestos-reinforced plastics, switchgear, breakers, Bakelite
Raymond Sabo carpenter and painter (construction) buildings throughout the New York City metropolitan area, New York, New York 1959-1979 joint compound, floor tile, joint compound, floor tiles, roofing, fire-rated doors
Edward Sadowski carpenter's mate (the Navy); military service 1951-1955
Edward Sadowski carpenter and construction supervisor (construction) numerous buildings throughout the New York City region, New York, New York 1955-1983 joint compound, floor tile, joint compound, floor tile, fire-rated doors, boilers, valves, pumps
George Santiago New York City Transit Authority employee New York, New York 1969-1980 asbestos-reinforced plastics, brakes, clutches and friction materials, gaskets and packing, pipe and block insulation, insulating cement, asbestos textiles, panel boards, control panels, switching gear, brakes, gaskets, pipe covering, cement, blankets
George Smith oiler and fireman (the Navy) 1945-1947 gaskets and packing, insulating cement, refractory products, cement, firebrick, packing, gaskets

The defendants

  • Air & Liquid Systems Corporation, as successor-by-merger to Buffalo Pumps (manufacturer)
  • Foster Wheeler, LLC (manufacturer)
  • CBS Corp. (manufacturer)
  • Union Carbide Corporation (manufacturer)
  • Ford Motor Company (manufacturer)
  • Georgia-Pacific, LLC (manufacturer)
  • Consolidated Rail Corporation (railroad)
  • Metro-North Commuter Railroad (railroad)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

  • Malcolm v. National Gypsum Co. (U.S. Court of Appeals, Second Circuit, 1993). The Second Circuit reversed the $226,038 judgment that Roberta Kranz, executrix of Lee Lewis's estate, won against Keene Corporation, and remanded for a new trial because consolidating 48 asbestos cases for trial was improper and prejudiced Keene.
  • Johnson v. Celotex Corp. (U.S. Court of Appeals, Second Circuit, 1990). The Second Circuit affirmed the jury judgment for plaintiffs John and Ann Marie Johnson, including compensatory and punitive damages, against Celotex and Owens-Illinois; one judge dissented as to punitive damages.
  • Ballard v. Armstrong World Indus. (Matter of Seventh Jud. Dist. Asbestos Litig.) (New York Supreme Court, Monroe, 2002). The court denied plaintiffs' motion to consolidate the Ballard and Cooros cases for trial, denied consolidation of the two deceased workers' claims with the living plaintiffs in Duemmel/Keller, severed Pschirrer's claim from Duemmel and allowed it to be consolidated with Keller, largely favoring the objecting defendants.

Later decisions citing this one

One later decision in our library cites this one:

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

2012 NY Slip Op 32097(U)

HARRY ADLER, SCOTT DEWITT, EUGENE LEHNERT, JOSEPH MIRABILE, ALAN NUDELMAN,

MARK ROCK, ROBERT WEXLER, MURRAY BLONDER, CHARLES CHIDESTER, JOHN

DELLARATTA, JOSEPH MILAZZO, WILLIAM MORITZ, IVO PERAICA, ANTONIO PEREZ, ROBERTO

ROMAN, FRANK RUGNETTA, RAYMOND SABO, EDWARD SADOWSKI, GEORGE SANTIAGO,

GEORGE SMITH, GLENDA VEGA, THOMAS NEUER, Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORPORATION, as successor-by-merger to BUFFALO PUMPS, etal.,

Defendants.

Docket No. 190181/11, Motion Seq. No. 002.

August 7, 2012.

Filed August 8, 2012.

Supreme Court, New York County.

Weitz & Luxenberg, P.C., Thomas M, Comerford, Esq., Frank Ortiz, Esq., 700 Broadway, New York NY 10003, (212) 558-5500, For All Plaintiffs.

McGivney & Kluger, P.C., Michelle D. Grady, Esq., Laura B. Hollman, Esq., Justin Kasmir, Esq., Matthew D. Sampar, Esq., Carol M. Tempesta, Esq., 80 Broad St., ste. 2300, New York NY 10004, (212) 509-3456, For Defendants Atwood & Morrill Co., Aurora Pump Company, Barnes & Jones, Inc., The Fairbanks Company, Oakfabco, Inc. and Taco, Inc.

Sedgwick, LLP,[1] Stephen Novakidis, Esq., Three Gateway Center, 12th fl., Newark NJ 07102, (973) 242-0002, For Defendants Foster Wheeler, LLC, CBS Corp. & as Lead Counsel for All Other Remaining Defendants.

Malaby & Bradley, LLC, David H. Jones, Esq., 150 Broadway, ste. 600, New York NY 10038, (212) 791-0285, For Defendant Bakers Pride Oven Company, Inc., n/k/a QCP, Inc.

Eckerl, Seamans, Cherin & Mellot, LLC, Thomas M. Smith, Esq., 10 Bank St., ste. 700, White Plains NY 10606, (914) 949-2909, For Defendants Consolidated Rail Corporation and American Premier Underwriters, Inc.

Landman Corsi Ballaine & Ford, P.C., Christopher S. Kozak, Esq., 120 Broadway, New York NY 10271, (212) 238-4848, For Defendants Metropolitan Transportation Authority and Metro-North Commuter Railroad.

Darger En-ante Yavitz & Blau, LLP, Daniel E. DeCicco, Esq., Jonathan B. Kromberg, Esq., 116 E. 27th St., 12th fl., New York NY 10016, (212) 452-5300, For Defendants Dana Companies, LLC, Lennox Industries, Inc. and Union Carbide Corporation.

Wilson, Elser, Moskowitz, Edleman & Dicker, LLP, 120 E. 42nd St., New York NY 10017, (212) 490-3000, For Defendants American Biltrite, Inc. AMF Inc., Carrier Corp., Federal Mogul Asbestos Personal Injury Trust, as successor to Felt Products MFC, Co., and Siemens Industry, Inc.

Seyfarth Shaw LLP, James S. Yu, Esq., 620 Eighth Ave. New York NY 10018, (212) 218-5500, For Defendants G.S. Blodgett Corp., Middleby Marshall, Inc. & The Middleby Corp.

Lynch Daskal Emery, LLP, Lawrence G. Lee, Esq., 264 W. 40th St. New York NY 10018, (212) 302-2400, For Defendant Georgia-Pacific, LLC, Lynch Daskal Emery, LLP.

Aaronson, Rappaport, Feinstein & Deutsch, LLP Christopher L. Pawlowski, Esq., 600 Third Ave. New York NY 10016, (212) 593-6700, For Defendant Ford Motor Company.

DECISION & ORDER

PAUL G. FEINMAN, Judge.

By order of the Administrative Judge dated June 8, 2012, twenty-two April 2012 in extremis asbestos-related personal injury and wrongful death cases were referred to this court for trial by jury. Plaintiffs, all represented by the same counsel, now move by order to show cause to join the twenty-two individual actions for a single trial pursuant to CPLR 602(a) on the ground that the actions present common issues of law and fact. The remaining defendant, numbering in excess of eighty at the time of the argument of this motion, either through their joint opposition, or their individually filed opposition, raise numerous arguments as to why these cases should be tried separately. For the reasons that follow, the court has determined that these twenty-two cases shall be tried in three groups: one will consist of plaintiffs who have been diagnosed with lung cancer; a second will consist of plaintiffs who have been diagnosed with mesothelioma and who also allege exposure during their time working in the U.S. Navy (including one who worked for the U.S. Merchant Marine); and a third will consist of plaintiffs who have been diagnosed with mesothelioma but who never worked in the Navy. Two plaintiffs— Glenda Vega and Thomas Neuer—will be excepted from these sub-groups and will be tried separately and individually. Plaintiffs' papers focus on numerous factors which they believe justify joinder of all twenty-two of these matters, such as similar worksites and occupations among the plaintiffs; similar times of exposure; similar diseases; common "traditional" method of exposure which led to alleged inhalation of asbestos; and all plaintiffs being represented by the same counsel. The plaintiffs further submit that, although some plaintiffs are living and others dead, the life status of the plaintiffs is not dispositive of the issue of joinder because most people commonly understand that the diseases of lung cancer and mesothelioma may be fatal.

In opposition, the defendants collectively allege, in a somewhat conclusory fashion, that they oppose consolidation because they would suffer prejudice and because jury confusion would arise from joinder of all of the plaintiffs' claims. More specifically, defendants focus on the size of this cluster (twenty-two plaintiffs in all) and the number of defendants (Smith Aff. ¶ 6), the fact that this cluster of plaintiffs includes individuals suffering from one of two different diseases (mesothelioma and lung cancer) (Sampar Aff. ¶ 5), that members were exposed by different means at differing locations (Smith Aff. ¶ 6), that some members of the cluster are deceased and others currently alive (Kromberg Aff. ¶ 29), and that some plaintiffs allege exposure during their time with the U.S. Navy or Coast Guard (Sampar Aff. ¶ 6).

The Individual Plaintiff's

  1. Harry Adler

Harry Adler was allegedly exposed to asbestos in the form of cement, packing materials, and gaskets utilized on and within pumps, valves, and turbines while working on the U.S.S. FDR as a member of the United States Navy between 1958 and 1970. Mr. Adler was further allegedly exposed to asbestos by working with asbestos tiles, asphalt tiles, and joint mix during his tenure as a residential and commercial construction worker from the 1950s through the early 1970s. Mr. Adler was diagnosed with lung cancer on August 19, 2009, and is currently seventy-three years old.

  1. Scott Dewitt

Plaintiff Scott Dewitt alleges exposure from numerous occupations over a thirty-year period, including being a hotel employee in the early 1970s, a roofer's assistant in the mid-1970s, a fireman in the U.S. Navy from 1977-1979, electrician's assistant at Lawrence Aviation from 1980-1982, maintenance worker at Riverhead Nursing Home from 1988-2004, and a plumber's assistant from the mid-1980s until the mid-1990s. Mr. Dewitt was diagnosed with lung cancer on January 30, 2010; he is currently fifty-four years of age.

  1. Eugene Lehnert

Eugene Lehnert was allegedly exposed to asbestos while working at numerous metropolitan New York work sites as a Local 3 Electrician between 1964 and 2006. He alleges exposure from work activities including drilling Bakelite on electrical equipment, scoring floor tile, sanding joint compound, and removing and replacing boiler insulation. Mr. Lehnert alleges additional exposure from his presence near spray fireproofing at One New York Plaza and near raw fiber dumping at the

Kentile factory, as well as from working on multiple home renovations between the years of 1968 and 1975, during which time he worked with drywall and applied joint compound. Mr. Lehnert was diagnosed with lung cancer on May 2, 2011 and is currently sixty-six years of age.

  1. Joseph Mirabile

Joseph Mirabile alleges exposure during his nearly thirty years working as a plumber; specifically, Mr. Mirabile alleges exposure to asbestos-containing pipe covering, insulation, valves, pumps, gaskets, spray fireproofing, floor tile, and wallboard compound at various New York metropolitan worksites. Between 1976 and 1977, Mr. Mirabile also served as a fireman in the U.S. Navy, where he alleges exposure to asbestos from proximity to ship turbines, pumps, and valves. Mr. Mirabile was diagnosed with lung cancer on April 18, 2011; he is currently seventy-six years old.

  1. Alan Nudelman

Alan Nudelman alleges exposure to asbestos as a result of his co-ownership of a gas/service station. During the time periods of 1959-1966 and 1974-1984, Mr. Nudelman was responsible for ordering parts and observing and supervising mechanics involved in daily automobile repair work—including the blowout, sanding, and blowing off of auto parts. Mr. Nudelman was diagnosed with lung cancer on April 4, 2011. He is currently seventy years of age.

  1. Mark Rock

Mark Rock was allegedly exposed to asbestos while serving as a fireman in the U.S. Coast Guard between 1951 and 1954, and while employed as a plumber and construction manager at various commercial and residential sites in and about New York State from 1956 until the early 1980s. Mr. Rock alleges specific exposure to various asbestos-containing products such as including gaskets, packing, joint compound, pipe covering, floor tiles, and press pads. He alleges exposure to asbestos-containing equipment including boilers, pumps, valves, hot water heaters, air conditioning units, and steam presses. Mr. Rock was diagnosed with lung cancer on November 2, 2010. He is currently eighty years of age.

  1. Robert Wexler

Robert Wexler alleges exposure throughout his twenty-plus year career working as a plumber in the New York City metropolitan area (1958-1979). Specifically, he alleges exposure to asbestos-containing boilers, furnaces, pumps, valves, steam traps, baker ovens, gaskets, and other items. Mr. Wexler was diagnosed with lung cancer on May 12, 2011. He is currently sixty-eight years of age.

  1. Glenda Vega

Glenda Vega alleges exposure to asbestos as an infant bystander to hole patching work performed in her Bronx apartment between 1975 and 1977. She alleges further exposure during this same time period to asbestos brought home on her father's clothing as a result of his employment, which at the time involved wall-patching work at various buildings throughout New York City. Ms. Vega was diagnosed with peritoneal mesothelioma on July 11, 2011. She is currently thirty-eight years old,

  1. Thomas Neuer

Thomas Neuer was allegedly exposed to asbestos during his career as a signalman and foreperson for the MetroNorth, Conrail, and Penn Central railroad companies between 1972 and 1980: He was allegedly exposed to pipe insulation, wires, and Bakelite used in fuse boxes and switch controls during his work in the Park Avenue Tunnel, Grand Central Station and the command towers in each respective railroad area. Mr. Neuer was diagnosed with mesothelioma on April 7, 2011, and is currently sixty-five years old.

  1. Murray Blonder

Murray Blonder alleges that he was exposed to asbestos working as a carpenter at various residential and commercial work sites throughout the New York metropolitan area between 1954 and 1979. Specifically, Mr. Blonder was allegedly exposed to asbestos from mixing and sanding asbestos-containing joint compound, cutting and installing asbestos-containing sheetrock, sawing, scoring, and snapping vinyl asbestos floor tile, cutting into wood fire doors, and applying insulation while installing boilers. Mr. Blonder was diagnosed with mesothelioma on September 12, 2011, and is currently seventy-five years old.

  1. Charles Chidester

Charles Chidester was allegedly first exposed to asbestos as an electrician in the Navy between 1944 and 1969. During this time, Mr. Chidester was allegedly exposed to asbestos-containing pumps and valves on the U.S.S. Connelly and as a bystander on both the U.S.S. Randolph and the U.S.S. America. Mr. Chidester also alleges exposure from electrical panels, turbines, and evaporators. Mr. Chidester was allegedly exposed for a second period while working at a military training center located in Florida between 1971 and 1974 from contact with joint compound and asbestos insulation on condensers inside of chiller units. Mr. Chidester was diagnosed with mesothelioma on April 25, 2011; he is currently eighty-five years old.

  1. John Dellaratta

John Dellaratta was allegedly exposed to asbestos from 1950 to 1969 while working as a printer for the Imperial Paper Box company in Brooklyn, where he was allegedly exposed to asbestos insulation and cement on printing machinery. He alleges further exposure at Imperial Box from performing maintenance work on pipe coverings, boilers, and roofing materials. Mr. Dellaratta was also employed as a painter for Nassau County, where he allegedly regularly worked with asbestos-containing taping, joint compound and vinyl tile from 1969 until the late 1970s. Mr. Dellaratta was diagnosed with mesothelioma on May 27, 2011, and passed away on December 11, 2011 at the age of seventy-nine.

  1. Joseph Milazzo

Joseph Milazzo alleges exposure to asbestos between the years of 1967 and 1971 while working in the supply area of two U.S. Navy ships. Mr. Milazzo alleges that he was at times exposed daily basis while delivering equipment parts to various sections of the ship and observing repair work on ship pumps, valves, and turbines; the latter repair work, he alleges, involved removal and replacement of asbestos-containing cement and the use of asbestos-containing blankets, gaskets, and rope packing. Mr. Milazzo was diagnosed with mesothelioma on August 10, 2011. He is currently sixty-three years old. 14. William Moritz

William Moritz alleges exposure to asbestos during two time periods—while working as an electrician's assistant aboard two ships in the U.S. Navy from 1958 to 1960, and while working as a truck driver for the Daily News from 1970 to 1977. During the former period, Mr. Moritz alleges indirect exposure to asbestos cement, packing, and gaskets utilized on pumps, valves, turbines, and boilers on the ship. During the latter, Mr. Moritz alleges asbestos exposure from deteriorating pipe covering and cement, as well as from brake dust released from multiple brake jobs performed each week in the truck garage. Mr. Moritz was diagnosed with mesothelioma on May 6, 2011 and is currently seventy-three years of age.

  1. Ivo Peraica

Ivo Peraica alleges exposure to asbestos during his time working as an insulator after immigrating to the United States in 1978. Mr. Peraica allegedly removed asbestos from various types of equipment, including boilers, pumps, chillers, and turbines in a variety of New York City metropolitan area work sites. Mr. Peraica was diagnosed with mesothelioma on August 26, 2011. He is currently sixty-three years old.

  1. Antonio Perez

Antonio Perez was allegedly exposed to asbestos while working as a laborer for Mario & DiBono from 1970 to 1973. Specifically, he alleges exposure via involvement in asbestos spray application at the World Trade Center site and from performing similar work at Rockefeller Center, One Penn Plaza, and at a school in downtown Manhattan. While participating in spray work, Mr. Perez also allegedly observed others install floor tile and pumps containing asbestos. Mr. Perez was diagnosed with mesothelioma on August 8, 2011, and is currently seventy-one years old.

  1. Roberto Roman

Roberto Roman was allegedly exposed to asbestos while serving as a fireman in the U.S. Navy from 1964 to 1968 and again while later employed as a stationary fireman/boiler-tender at various New York City metropolitan area health and educational institutions between 1972 and the mid-1980s. As a Navy fireman, Mr. Roman was allegedly exposed while performing work on boilers, pumps, valves, insulation, gaskets, and packing. Mr. Roman alleges he was exposed as a stationary fireman/boiler-tender while working on boilers, pumps, valves, refrigeration units, and IIVAC units. Mr. Roman was diagnosed with mesothelioma on July 1, 2011; he is currently sixty-nine years old.

  1. Frank Rugnetta

Frank Rugnetta alleges asbestos exposure during multiple periods throughout his varied forty-plus year career as a plumber and mechanic. He alleges exposure as a plumber's assistant (1956-1963) from removing and installing residential boilers and furnaces, among other activities. Mr. Rugnetta alleges exposure as an auto mechanic from 1964-1966 and as service station owner from 1972-1979 from performing automobile brake and clutch repair. Mr. Rugnetta also alleges exposure to asbestos-containing electrical equipment including switchgear, breakers, and Bakelite during his time as a mechanic for the Port Authority and New York Transit Authority (1966-1971). Finally, he alleges exposure during his time as a facilities maintenance mechanic at four airports (1972-1980s) to asbestos-containing air starter units, brakes, clutches, baggage carousels, pumps, valves, and other equipment. On August 19, 2011, Mr. Rugnetta was diagnosed with mesothelioma; he is currently sixty-seven years old.

  1. Raymond Sabo

Raymond Sabo was allegedly exposed to asbestos throughout a twenty-year career (1959-1979) as a carpenter and painter performing demolition, roofing, painting, wallpaper hanging, and floor tile work in numerous buildings throughout the New York City metropolitan area. He allegedly worked with and around others working with asbestos-containing boilers, valves, pumps, turbines, hot water heaters, roofing, joint compound, floor tiles, and fire-rated doors. Mr. Sabo was diagnosed with mesothelioma on August 15, 2011. He died on February 11, 2012 at age seventy.

  1. Edward Sadowski

Edward Sadowski alleges exposure to asbestos while working as a carpenter's mate in the U.S. Navy from 1951 to 1955, and as a carpenter and construction supervisor working in numerous buildings throughout the New York City region from 1955 to 1983. Specifically, he alleges asbestos exposure by working with boilers, valves, pumps, turbines, chillers, joint compound, floor tile, and fire-rated doors. Mr. Sadowski was diagnosed with mesothelioma on May 3, 2011. He died on September 26, 2011, at age eighty.

  1. George Santiago

George Santiago was allegedly exposed during his career with the New York City Transit Authority from 1969 through 1980 during his work with asbestos-containing electrical equipment (panel boards, control panels, control circuits, switching gear, etc.), pumps, transformers, air compressors, brakes, gaskets, pipe covering, cement, and blankets. On August 8, 2011, Mr. Santiago was diagnosed with mesothelioma. He is currently sixty-two years old.

  1. George Smith

George Smith alleges asbestos exposure from his time as an oiler and fireman in the Merchant Marine and U.S. Navy from 1945 to 1947. He was allegedly exposed through firsthand work on pumps, boilers, valves, and turbines with asbestos-containing cement, firebrick, packing, and gaskets. Further, he alleges indirect exposure through proximity to shipmates and yardworkers using the same materials. Mr. Smith was diagnosed with mesothelioma on November 17, 2010. He died on October 8, 2011 at age eighty-four.

Analysis

CPLR 602 (a) permits a court to join actions involving common questions of law or fact; joinder of common matters is appropriate "where it will avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent the injustice which would result from divergent decisions based on the same facts" (Chinatown Apartments, Inc. v New York City Transit Authority, 100 AD2d 824, 826 [1st Dept 1984]). The courts are given "great deference" in the decision to join matters (Matter of Progressive Ins. Co. [Vasquez-Countrywide Ins. Co.], AD3d 518, 519 [1st Dept 2004J). The chief policy considerations behind consolidation or joinder are efficiency and the conservation of judicial resources (see Sokolow, Dunaud, Mercadier & Carreras v Lacher, 299 AD2d 64, 73-74 [1st Dept 2002]; Matter of New York City Asbestos Litigation, 188 AD2d 214, 225 [1st Dept 1993], affd 82 NY2d 821 [1993]). Yet, "considerations of convenience and economy must yield to a paramount concern for a fair and impartial trial" (Johnson v Celotex Corp., 899 F2d 1281, 1284 [2d Cir 1990]). Joint trials are ill advised when "individual issues predominate, concerning particular circumstances applicable to each plaintiff" (Bender v Underwood, 93 AD2d 747, 748 [1st Dept 1983]). Thus, although a joint trial has the potential to "reduce the cost of litigation, make more economical use of the trial Court's time, and speed the disposition of cases as well as [] encourage settlements" (Malcolm v National Gypsum Co., 995 F2d 346, 354 [2d Cir 1993]), it is "possible to go too far in the interests of expediency and to sacrifice basic fairness in the process" of joinder, and joint trial should be denied where (1) individual issues predominate over common issues in the cases sought to be joined, or (2) the party opposing the joint trial demonstrates substantial prejudice" (Ballard v Armstrong World Industries, 191 Misc. 2d 625, 627-28 [Sup Ct Monroe Cty 2002]).

To decide whether a joint trial is proper in the context of asbestos-related personal injury and wrongful death actions, this court continues to consider the factors articulated in Malcolm v National Gypsum Co., 995 F2d 346, 351-352 (2d Cir 1993). Specifically, the court looks at "(1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs [a]re living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged" (id. at 351 [quotations and citations omitted]). The party moving for joinder bears the initial burden of demonstrating the commonality of the issues, at which point the burden shifts to the opponent to establish prejudice and potential jury confusion (Bender v Underwood, 93 AD2d 747, 748 [1st Dept 1983]). Considering the number of plaintiffs in the present action and the substantial practical and logistical challenges that would result from a proceeding with twenty-two plaintiffs and a substantially larger number of defendants (currently in excess of eighty), the interest of justice does indeed dictate that the plaintiffs be split into smaller groups for trial. Accordingly, all seven plaintiffs who have been diagnosed with lung cancer—Harry Adler, Scott Dewitt, Eugene Lehnert, Joseph Mirabile, Alan Nudelman, Mark Rock, and Robert Wexler-—will be joined in a consolidated proceeding. The pathology of lung cancer is substantively different than that of mesothelioma, and the differences in medical testimony that will be required for this disease makes grouping plaintiffs who are diagnosed with this condition a reasonable basis on which to segregate them from the remainder of the plaintiffs, all of whom are diagnosed with some form of mesothelioma. While causation will likely be disputed at trial, the issue of the etiology of lung cancer is common to all members of this first group and it is likely that the same experts will be testifying for most, if not all, of the plaintiffs therein (see Matter of New York City Asbestos Litig., 9 Misc3d 1109[A], [*2] [NY Sup Ct 2005]).

Once the plaintiffs with lung cancer have been separated, fifteen plaintiffs—fourteen of whom have been diagnosed with pleural mesothelioma—remain. From these remaining fifteen plaintiffs, plaintiff Vega (the sole party in this action diagnosed with peritoneal, and not pleural, mesothelioma) and plaintiff Neuer will be severed for reasons discussed in greater detail below. Still, the remaining thirteen individuals who have been diagnosed with pleural mesothelioma are simply too numerous for one consolidated proceeding. The practical and logistical obstacles to conducting such a proceeding are too

abundant and obvious, and the risk of juror confusion and substantial prejudice is too great with a group containing all of the plaintiffs with mesothelioma in this cluster, regardless of how many similarities such plaintiffs share. Accordingly, the remaining thirteen pleural mesothelioma plaintiffs will be further divided into two groups. In opposing any joinder whatsoever, defendants point out that there are several plaintiffs claiming exposure during their service in the U.S. Navy, and such defendants may be entitled to certain federal government contractor defenses that would be not be applicable to the defendants in the other cases in the instant action (see, e.g., Sampar Aff. ¶ 6; see also Boyle v United Technologies Corp,, 487 US 500, 512 [1988]). Though this issue itself would not necessarily predominate over numerous common factors within a numerically smaller group of plaintiffs (as evidenced by the fact that the lung cancer group in this cluster will remain undivided notwithstanding the fact that some individuals therein served in the Navy and others did not), further dividing the pleural mesothelioma group along the lines of Navy vs. non-Navy exposure nevertheless serves as a rational and convenient mechanism for dividing the "mesothelioma group," which is simply too large despite the commonality among its members. Thus, those plaintiffs diagnosed with mesothelioma will be sub-divided into two sub-groups: one smaller sub-group of plaintiffs with mesothelioma who also allege exposure during their time working in the U.S. Navy (Charles Chidester, Joseph Milazzo, William Moritz, Edward Sadowski, and George Smith[2]), and another consisting of plaintiffs with mesothelioma who have never worked in the Navy (Murray Blonder, John Dellaratta, Ivo Peraica, Antonio Perez, Roberto Roman, Frank Rugnetta, Raymond Sabo, and George Santiago).

Defendants also raise the argument that plaintiffs have varying tobacco smoking histories, which, they allege, will confuse the jury in a consolidated proceeding. Thus, defendants contend the cluster should consequently be further subdivided into smoking and non-smoking sub-groups (see, e.g., Yu Aff. ¶ 7). Plaintiffs' different smoking histories, however, will not prevent the jury from executing its function. The pattern jury instructions assume that jurors are capable of distinguishing between concurrent causes of an illness and/or the aggravation of a pre-existing condition, and the court will not presume that jurors would be unable to distinguish between multiple smoking histories in fulfilling their function. Thus, further taxing of scarce judicial and juror resources by subdividing the aforementioned groups into smoking and non-smoking subgroups is not merited.

Further, with regard to the different life statuses of the plaintiffs, this court has repeatedly held that the life status factor is not determinative of the issue of joinder in asbestos cases (see Matter of New York City Asbestos Litig., 2005 NY Slip Op 51465[U], [*1]). The Malcolm factors must be considered in their totality; no single factor is dispositive. It is commonly understood that the alleged diseases ultimately lead to death and, coupled with the long-term nature of the alleged exposures, whether the plaintiffs are alive or deceased is of little import (see Matter of New York City Asbestos Litig., 9 Misc3d 1109[A], * 1 [NY Sup 2005]). Accordingly, different life status will not serve as a factor that will prohibit consolidation of plaintiffs into groups which, under the Malcolm factors, will both ensure each plaintiffs ability to his or her day in court but which will also utilize judicial resources, and increasingly scarce jurors, in an economical maimer.

Defendants also argue that the differences among plaintiffs' occupations, work sites, and types of exposure render these matters too factually dissimilar for joinder. They contend that common rather than "similar" jobsites is the litmus test for the relevant prong of the Malcolm analysis, and that the myriad sites at which plaintiffs allege exposure-—including naval yards, commercial sites, and residential buildings—are not sufficiently similar so as to qualify as common work sites (see, e.g., Smith Aff. ¶ 13). Defendants also cite plaintiffs' varying occupations, including electrician (Chidester), painter (Sabo), and roofer's assistant (Dewitt), and argue that the way in which each may have been exposed to asbestos-containing products is vastly different (id. at ¶ 14). With the exception of plaintiffs Vega and Neuer (whose cases are discussed in greater detail below), these arguments fail to persuade the court that consolidation of plaintiffs into groups according to the disease with which they have been diagnosed are unwarranted or unduly prejudicial. Each plaintiff alleges exposure from the same or similar products—mainly, asbestos-containing insulation, pipe covering, and floor tile, and valves/gaskets. Testimony and evidence regarding most of these products and the type of asbestos exposure that could result from then will be identical or nearly so in each matter (see Matter of Dankenbrink, Sup Ct, NY County, Feb. 19, 2010, Shulman, J., index No. 190009/09). Defendants raise two issues in this vein worth addressing, however. First, they argue that two of the plaintiffs—Nudelman (within the lung cancer group) and Rugnetta (within the mesothelioma group)—allege exposure due to proximity to "friction products," which would allegedly require unique "witnesses, studies, and other evidence" (Novakidis Aff. ¶ 39). This argument, however, does not alone tip the Malcolm calculus in favor of providing separate trials for these two plaintiffs in light of the substantial commonality with the other members of their disease-specific grooupss; indeed, a plaintiffs need for unique evidence and witnesses to support some idiosyncratic elements of his or her case within a consolidated proceeding does not render a separate proceeding necessary (or even useful) per se. Second, defendants allege that three plaintiffs—

Vega, Milazzo, and Moritz—were exposed to asbestos as "bystanders," arguing they were present when work with asbestos-containing products was being performed by someone else (Novakidis Aff. ¶ 40). Of these three, however, Vega is the only plaintiff who was a "bystander" in the sense that she was not exposed to asbestos during the course of her employment. For reasons enumerated below (the most important of which is that she is the only plaintiff in this cluster suffering from the disease of peritoneal, and not pleural mesothelioma), Vega will be severed from the mesothelioma group. Despite alleging that they are "bystanders," Milazzo and Moritz also allege exposure to asbestos-containing products during the course of their employment. Further segregating the groups along this relatively minor distinction would j only further tax judicial resources without providing any real benefit to the individual plaintiffs or defendants; indeed, it is highly unlikely that even plaintiffs who allege exposure primarily as a result of work they themselves were performing were not also exposed to asbestos in this secondhand fashion as well, and that they thus would not present evidence from which a jury could draw this conclusion.

Defendants further argue that the varying time frames of exposure will lead to jury confusion and prejudice against them. The plaintiffs do indeed allege exposure during some mutually exclusive time periods ranging from the 1950s to the 1980s and beyond. Although the dates of exposure vary, this alone is not sufficient to warrant denial of a consolidated trial (see Matter of Batista, Sup Ct, NY County, Feinman, J., index No. 190009/09). Defendants fear that that the jury will apply the more restrictive state-of-the-art standard of later years to matters from years pre-dating this standard. However, as noted in previous decisions issued by this court, the Occupational Safety and Health Administration (OSHA) regulations were enacted in 1971, so any defendant to a claim which involves a time period which crosses this threshold year would have to hear state-of-the-art testimony related to pre-OSHA and post-OSHA standards even if cases were severed in this manner. Therefore, no additional confusion or prejudice will be created by the sub-groups created in this decision. Defendants argue convincingly, however, that the actions of two plaintiffs—Glenda Vega and Thomas Neuer—ought to be tried separately and individually. Vega is the sole plaintiff among the twenty-two diagnosed with peritoneal mesothelioma,[3] which is a distinct disease from not only lung cancer, but also from pleural mesothelioma[4] (Crapo Aff. ¶ 15). She is the only plaintiff who does not allege firsthand occupational exposure to asbestos, and the only plaintiff who alleges take-home exposure (Kromberg Aff. ¶ 7). Further, the defendant Union Carbide Corporation is a defendant only in the Vega case and no others in the cluster, None of the Malcolm factors (with perhaps the exception of `same plaintiffs counsel') weigh in favor of a joint trial involving Vega and other any plaintiffs case within this cluster, Plaintiff Vega's disease and the underlying etiology of her illness are truly unique among the twenty-two plaintiffs and consolidation of her case would present a specific risk of prejudice and possible confusion. Accordingly, the Vega case will be tried separately from the other twenty-one cases.

Plaintiff Neuer's action is the only action within this cluster involving a claim of liability under the Federal Employers' Liability Act (FELA); as such, plaintiff Neuer's case is the only one that will involve the negligence standard of care as provided by FELA and not that of strict product liability. Confusion among jurors is very likely to occur between the elements of a FELA claim (in particular, the unique statutory duty and breach elements that Neuer must prove under FELA) and the similar but distinct elements of the strict products liability claims levied against all other defendants. The unique claims, defenses, and potential damages relating to FELA in the Neuer case accordingly require that plaintiffs' motion to consolidate be denied with respect to plaintiff Neuer, whose trial proceed in due course as a separate action.

Finally, since all plaintiffs in this cluster share counsel, the risk of jury confusion during the proceedings of the aforementioned sub-groupings can be avoided by the use of "intelligent management devices" (Zalduondo v City of N.Y., 141 AD2d 816, 818 [2d Dept 1988]; see also Matter of Dankenbrink, Sup Ct, NY County, Feb. 19, 2010, Shulman, J., Index No. 104216/04, quoting Matter of New York City Asbestos Litig, 2006 NY Slip Op 50375[U], [*4]; see, e.g., New York Cent. Mut Ins. v McGee, 25 Misc 3d 1232[A], 2009 Slip Op 52385[U[, [*5] [Sup Ct, Kings County 2009]; Matter of New York City Asbestos Litig., 22 Misc 3d 1109[A], 2009 Slip Op 52385[U], [*6] [Sup Ct, Kings Co. 2009]). Counsel should specifically familiarize themselves with the procedures described for implementing the innovations in the publication Jury Trial Innovations in New York State: A Practical Guide for Trial Judges, available at www.nyjuryinnovations.org. In sum, consideration of the Malcolm factors in the instant case in concert with the reality that "consolidation [and joinder] is favored by the courts" where equitable and in the interest of judicial economy (Humiston v Grose, 144 AD2d 907, 908 [1st Dept 1988]), this court finds that the most prudent grouping of plaintiffs in this case entails consolidating all seven plaintiffs who have been diagnosed with lung cancer (Harry Adler, Scott Dewitt, Eugene Lehnert, Joseph Mirabile, Alan Nudelman, Mark Rock, and Robert Wexler) in one group for trial, consolidating the eight plaintiffs who have been diagnosed with pleural

Group I (Lung Cancer) HARRY ADLER Index No, 190181 -11 SCOTT DEWITT Index No. 190429-11 EUGENE LEHNERT Index No. 190252-11 JOSEPH MIRABILE Index No. 190176-09 ALAN NUDELMAN Index No. 190320-11 MARK ROCK

Index No. 190319-11 ROBERT WEXLER Index No. 190223-11; and it is further Group II (Mesothelioma, non-Navy) MURRAY BLONDER Index No. 190370-11 JOHN DELLARATTA Index No. 190248-11 IVO PERAICA Index No. 190339-11 ANTONIO PEREZ Index No, 190328-11 ROBERTO ROMAN Index No. 190262-11 FRANK RUGNETTA Index No, 190389-

11 RAYMOND SABO Index No. 190318-11 GEORGE SANTIAGO Index No. 190445-11 Group III (Mesothelioma, Navy) CHARLES CHIDESTER Index No. 190293-11 JOSEPH MILAZZO Index No. 190311-11 WILLIAM MORITZ Index No.

190294-11 EDWARD SADOWSKI Index No. 190215-11 GEORGE SMITH Index No, 190299-11; and it is further

mesothelioma who do not allege exposure while working in the U.S. Navy (Murray Blonder, John Dellaratta, Ivo Peraica, Antonio Perez, Roberto Roman, Frank Rugnetta, Raymond Sabo, and George Santiago) in a second group, and consolidating the five plaintiffs diagnosed with mesothelioma who allege exposure while working for the Navy (Charles Chidester, Joseph Milazzo, William Moritz, Edward Sadowski, and George Smith) in a third group. The remaining actions of the two plaintiffs, Glenda Vega and Thomas Neuer, will continue as actions to be individually tried.

The group of plaintiffs diagnosed with lung cancer (all of whom are currently alive) shall be tried first, followed by the group with mesothelioma who were not in the Navy, then the group with mesothelioma who served in the Navy, then the cases of the individual plaintiffs Vega and Neuer,

It is therefore

ORDERED that plaintiffs' motion for a joint trial is granted to the following extent:

ORDERED that the remaining two cases in this cluster (Vega and Neuer) will proceed separately and individually; and it is further

ORDERED that the Group 1 plaintiffs and defendants shall appear in Part 12 for jury selection on September 10, 2012; and it is further

ORDERED that any motions in limine which must be resolved prior to jury selection should be the subject of a letter application made no later than August 24, 2012 with the original letter sent to chambers (60 Centre Street, rm 529, New York, NY 10007). Any opposition to the motions in limine should be addressed to the court in letter format delivered to the court by September 7, 2011. The court will hear argument on the motions in limine just prior to the start of jury selection on September 10, 2012; and it is further

ORDERED that any slides or Power Point presentations which the parties will use in opening statements shall be exchanged by September 7, 2012. Opening statements shall commence September 13, 2012. The trial will not be in session on September 17, 18, 21, 26 and on all Wednesdays.

This constitutes the decision and order of the court.

[1] This motion has been brought by all plaintiffs in the 22 cases in the April 2012 NYCAL In Extremis Cluster transferred to this court by order dated June 8, 2012. However, pursuant to the current controlling protocol for NYCAL In Extremis cases, the defendants designated a lead counsel, here, Sedgwick, LLP, by Stephen Novakidis, Esq. to submit a joint opposition to the plaintiffs' motion for joinder. Individual defendants were permitted to supplement the joint opposition, if necessary, with papers identifying issues particular to the facts of their cases. The appearances noted here relate solely to written papers, and the failure of a defendant's appearance to be noted is not a waiver of that defendant's objection to joinder, as preserved by the joint opposition. Nor does the failure of the court to note a defendant's appearance indicate that the defendant was not present for oral argument of the motion on July 23, 2012. [2] Plaintiff Smith in fact alleges exposure during his time working in the U.S. Merchant Marine Corps, but will nevertheless be joined within the "Navy-mesothelioma group."

[3] The remaining fourteen plaintiffs diagnosed with mesothelioma in this cluster were diagnosed with pleural mesothelioma. [4] Peritoneal mesothelioma has a different classification code than pleural mesothelioma under the International Statistical Classification of Diseases and Related Health Problems (ICD) published by the World Health Association (see http://www.who.int/classifications/icd/en/), and has different risk factors as demonstrated by epidemiological studies than pleural mesothelioma exposure (Kromberg Aff. at ¶ 13),

Sources

How to cite it

Cite the decision

Adler v. Air & Liquid Sys. Corp., 2012 NY Slip Op 32097(U) (New York Supreme Court August 8, 2012).

Cite our summary

“Summary of Adler v. Air & Liquid Sys. Corp.” AsbestosClaims.Law Library. https://asbestosclaims.law/library/cases/adler-v-air-and-liquid-sys-corp-2012.

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